Javier A. Simental v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 16 2016, 9:03 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sally Skodinski Gregory F. Zoeller
South Bend, Indiana Attorney General
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Javier A. Simental, December 16, 2016
Appellant-Defendant, Court of Appeals Case No.
71A04-1606-CR-1240
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1503-F6-131
Crone, Judge.
[1] A jury found Javier A. Simental guilty of level 6 felony domestic battery, and he
argues that the evidence is insufficient to support his conviction. We affirm.
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[2] In reviewing a claim of insufficient evidence, we do not reweigh the evidence or
judge the credibility of witnesses, and we consider only the evidence–even if
conflicting–that supports the conviction and the reasonable inferences arising
therefrom. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We will affirm
if there is substantial evidence of probative value such that a reasonable trier of
fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Id. The uncorroborated testimony of a single witness is sufficient to
sustain a conviction, even when that witness is the victim. Id.[3] To convict Simental of level 6 felony domestic battery as charged, the State was
required to prove beyond a reasonable doubt that he knowingly touched a
person with whom he has a child in common in a rude, insolent, or angry
manner resulting in bodily injury to that person in the physical presence of a
child less than sixteen years of age, knowing the child was present and might be
able to see or hear the offense. Ind. Code § 35-42-2-1.3(a), -(b)(2); Appellant’s
App. at 10. Simental claims that the evidence was insufficient to show that he
knowingly struck the victim. “A person engages in conduct knowingly, if when
he engages in the conduct, he is aware of a high probability that he is doing so.”
Ind. Code § 35-41-2-2.
[4] The facts most favorable to the verdict show that in November 2014, Simental
and his girlfriend Liliana Victoria argued over whether their two-year-old child
should go to church with Victoria or stay home with Simental. Victoria took
the child to her bedroom to dress her. Simental grabbed Victoria by the hair
and pulled her out in the hallway with his hand around her neck. In the
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kitchen, Victoria tried to get her cell phone out of her handbag to call 911.
Victoria and Simental struggled over the phone. Simental “smacked” Victoria
on the head, which hurt “a lot” and “knocked her to the ground.” Tr. at 109,
172. Simental held Victoria on the floor and kicked her. The child followed
them into the kitchen to find Victoria crying. Victoria and the child, who was
also crying, hid behind a furnace and called 911. On the 911 call, Victoria
reported that Simental “had smacked [her] really hard and [she] thought [she]
was going to pass out.” Id. at 112. Police officers arrived at the scene, but
Simental was gone. The police observed that Victoria appeared distraught, was
shaking and red in the face, and had been crying. Victoria had bruises and
marks on her neck and experienced head pain for a few days following the
incident.
[5] Simental asserts that he accidentally struck Victoria and that he so testified at
trial. See id. at 172 (“I didn’t mean to, but I did smack her one time.”). He
observes that although the State charged him with two counts–level 6 felony
strangulation and level 6 felony domestic battery–the jury found him guilty only
on the battery count. According to Simental, the jury must not have given any
weight to Victoria’s testimony regarding the strangulation count, and therefore
the verdict must have been based on what he admitted in his testimony.
Simental’s argument is without merit. “‘The jurors are the triers of fact, and in
performing this function, they may attach whatever weight and credibility to the
evidence as they believe is warranted.’” Parks v. State, 734 N.E.2d 694, 700
(Ind. Ct. App. 2000) (quoting Hicks v. State, 426 N.E.2d 411, 414 (Ind. 1981)).
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The jury is free to believe some portions and disbelieve other portions of a
witness’s testimony. Id. Simental’s argument is an invitation to reweigh the
evidence, which we must decline. We conclude that the evidence is sufficient
to show that Simental knowingly struck Victoria, and therefore we affirm his
conviction.
[6] Affirmed.
Riley, J., and Altice, J., concur.
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